Creative solutions to cultural appropriation – fashion industry

Marion Heathcote of the IP Outer Borders Team and Aparna Watal discuss some recent initiatives to assist indigenous communities with protecting their traditional cultural expressions.

While appropriation of indigenous culture is receiving increased media attention nowadays, there is scant discourse on effective and immediate solutions to the problem. This article is the first in a series that will profile creative solutions that are being implemented in various industries and countries to assist indigenous communities with protecting their traditional cultural expressions (TCE). In this article, we consider two solutions for the protection of TCE which have been successfully implemented within the fashion industry.

The problem arises, at least in part, because the practical distinction between cultural appreciation and appropriation can be blurry. Despite lacking mal intent, designers routinely find themselves accused of illicit appropriation when they perceive themselves as simply seeking inspiration for their designs.

Equitable Fashion Design provides a collaborative solution to this problem. It involves responsible borrowing and ensures respectful use of TCE by, firstly, requiring informed consent of the indigenous community to use their designs. Secondly, it requires adequately compensating the community for their designs and techniques.

This model was successfully used by the Brazilian designer Oksare Metsavaht to create his Spring 2016 collection which was inspired by the designs of the Asháninka tribe. In return, the tribe receives royalties and publicity for their fight against illegal logging of their forests. Metsavaht’s respectful use of the indigenous heritage has not only empowered and assisted the tribe, but also won him accolades for the ethical approach to using traditional cultural expressions. This benefits all stakeholders, and also allows for the designer to demonstrate dedication towards a worthwhile cause, which in turn engenders goodwill for the designer.

Government support

Indigenous communities face an ongoing challenge to maintain ownership and control over their TCE which is often misperceived as belonging to the public domain. Last year, for instance, French designer Isabel Marant released clothing which was a direct copy of the 600-year-old traditional 'huipil' clothing worn by the people of Santa Maria Tlahuitoltepec ("the Mixe People").

The Mixe People struggled to seek reparations as the designs were perceived as belonging to the public domain. It was only after significant social media outcry, protests at Marant's New York store and a press conference by the Mixe People that Marant admitted to having "derived inspiration" from their designs.

Since the incident, the Mexican government of Oaxaca has issued a Cultural Heritage Declaration claiming the Mixe People’s traditional designs, embroidery and language as intangible cultural heritage in accordance with the UNESCO guidelines. This is valuable in its symbolic significance as it not only confirms that the designs are unique to, and originate in, the Mixe culture but also affirms the Mixe culture’s own identity.

Had the Declaration existed prior to the incident, awareness of the cultural significance of this heritage might have deterred Marant from using the designs. At the very least the Mixe People could have pointed to the Declaration to support the claims of their designs being in the public domain. Governments need to proactively consider such declarations to preserve and publicize the relevance of TCE.

Opportunities for fashion activism

The above real world solutions offer creative options that may be immediately available to assist to provide effective protection for TCEs. The success of these options relies on stakeholder engagement, particularly from designers who could benefit greatly from taking the initiative to forge symbiotic partnerships with indigenous communities to encourage local self-sustaining economic initiatives (where appropriate) and to enable the protection, preservation and diversity of indigenous cultures.

Marion Heathcote is a Partner of Davies Collison Cave in Australia and a member of the MARQUES IP Outer Borders Team. Aparna Watal is a Trade Mark Lawyer at Davies Collison Cave in Australia.